The Logic Behind Padilla

Terror suspects must be denied all hope and face undefined torture - because it's the best way to get information from them. That's the actual public defense of the Bush administration's detention policies in the war on Islamist terrorism. Marty Lederman explains that the administration does not defend detention without charges because the suspects detained may be dangerous. It defends such detention because only if suspects know that they have no hope of due process, legal counsel or a day in court, will they cough up important intelligence. Money quote from Vice Admiral Lowell Jacoby, Director of the Defense Intelligence Agency:

Anything that threatens the perceived dependency and trust between the subject and interrogator directly threatens the value of interrogation as an intelligence-gathering tool. Even seemingly minor interruptions can have profound psychological impacts on the delicate subject-interrogator relationship. Any insertion of counsel into the subject-interrogator relationship, for example -- even if only for a limited duration or for a specific purpose -- can undo months of work and may permanently shut down the interrogation process. Therefore, it is critical to minimize external influences on the interrogation process.

By "external influences," he means the rule of law, the Geneva Conventions, the US Treaty obligations, and the Constitution. Marty goes on:

The Solicitor General even placed the Jacoby Declaration in the Appendix in the Padilla/Hamdi cases, and cited it liberally in support of its argument to the Court that the Administration should be entitled to detain persons not only for purposes of incapacitation, but also for purposes of long-term interrogations.

That is why, just as the Jacoby Declaration is the single most revealing document released by the government in the conflict against al Qaeda, so, too, the single most important sentence in any of the Supreme Court's decisions in the al Qaeda cases was a stark rejection of the government's rationale -- indeed, a remarkable rebuke to the Jacoby Declaration -- in Justice O'Connor's controlling opinion in Hamdi. After explaining at length that the laws of war and the Authorization for Use of Military Force permit detention for purposes of incapacitating combatants, Justice O'Connor wrote (542 U.S. at 521):

"Certainly, we agree that indefinite detention for the purpose of interrogation is not authorized."

No citation offered, because none should be needed. "Certainly."

Alas, certainty that we still live in a republic governed by the law is no longer possible.